93 Decision Citation: BVA 93-03181
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-53 947 ) DATE
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THE ISSUES
1. Entitlement to service connection for defective hearing.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. S. Freret, Counsel
INTRODUCTION
The appellant had active military service from December 1980
to March 1988.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal of April 1989 rating decision
by the Houston, Texas, Regional Office (hereinafter RO),
which denied entitlement to service connection for defective
hearing. The notice of disagreement was received in June
1989. The statement of the case was issued in October
1989. The appellant was notified by letter dated in October
1989 that service connection had been denied for tinnitus.
The notice of disagreement as to the denial of service
connection for tinnitus was received in January 1990. The
substantive appeal was received in January 1990. A
supplemental statement of the case was issued in August
1990. The case was received at the Board in December 1990
and was docketed in January 1991, at which time it was
referred to the appellant's representative, Disabled
American Veterans, who submitted additional written argument
in February 1991.
In April 1991, the Board remanded the case to the RO for
further development. Supplemental statements of the case
were issued in January 1992 and July 1992. The case was
returned to the Board in November 1992 and again referred to
the appellant's representative, who submitted an additional
supporting statement in December 1992. The case is now
ready for appellate consideration.
The appellant's claim originally included the issues of
entitlement to service connection for bilateral ankle
disabilities and hypertension. However, service connection
has been granted for those disabilities, and, therefore,
they are no longer for appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he has defective hearing and
tinnitus which began in service.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the appellant's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the appellant's claim of entitlement to service
connection for defective hearing.
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the positive and negative
evidence pertaining to the appellant's claim of entitlement
to service connection for tinnitus is evenly balanced.
Therefore, extending the benefit of the doubt doctrine to
him, as required by statute when the evidence is in
equipoise, the Board grants service connection for tinnitus.
FINDINGS OF FACT
1. The appellant is not shown to have defective hearing of
service origin.
2. Tinnitus is shown to be of service origin.
CONCLUSIONS OF LAW
1. Defective hearing was not incurred in or aggravated by
peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991);
38 C.F.R. §§ 3.303(b), 3.385 (1991).
2. Tinnitus was incurred in peacetime service. 38 U.S.C.A.
§§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The provisions of 38 U.S.C.A. § 5107(a) have been met, in
that the appellant's claim is well grounded and adequately
developed.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by
peacetime service. 38 U.S.C.A. § 1131.
I. Defective Hearing
The appellant argues that he has defective hearing which
began in service. Review of the service medical records
reveals that 30 decibel hearing losses were noted at the
frequencies of 4,000 and 6,000 cycles per second in the
right ear at the appellant's February 1988 discharge medical
examination. That examination report includes a diagnosis
of high frequency hearing loss in the right ear.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic, or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the
claim. 38 C.F.R. § 3.303(b).
On a Department of Veterans Affairs (hereinafter VA)
audiological evaluation conducted in November 1989, decibel
losses for the frequencies at 500, 1,000, 2,000, 3,000, and
4,000 cycles per second were 10, 15, 10, 15, and 25,
respectively, for the right ear, and were 10, 15, 10, 15,
and 20, respectively, for the left ear. Speech recognition
ability was 96 percent correct in each ear.
Service connection for impaired hearing shall not be
established when hearing status meets pure tone and speech
recognition criteria. Hearing status shall not be
considered service connected when the thresholds for the
frequencies of 500, 1,000, 2,000, 3,000, and 4,000 cycles
per second are all less than 40 decibels; the thresholds for
at least three of these frequencies are 25 decibels or less;
and speech recognition scores using the Maryland CNC test
are 94 percent or better. 38 C.F.R. § 3.385.
Although the appellant's discharge medical examination
indicates that he had high frequency hearing loss in the
right ear, defective hearing for VA purposes has not been
demonstrated on audiological evaluation since service.
Absent audiological findings since service that demonstrate
hearing impairment under the provisions of 38 C.F.R. § 3.385,
the Board is unable to identify a basis for granting service
connection for defective hearing.
II. Tinnitus
The appellant asserts that he has experienced ringing in his
ears since service as a result of exposure to acoustic
trauma that included demolitions and machine gun fire.
Review of the service medical records reveals no complaint
or finding of tinnitus. However, a February 1988
audiological evaluation, conducted in conjunction with the
appellant's separation from service, indicates that he was
routinely exposed to hazardous noise. The initial complaint
of tinnitus was reported at a December 1988 VA ear, nose,
and throat examination. The diagnosis was intermittent
tinnitus. The November 1989 VA audiological evaluation
report also notes that the appellant reported occasional
tinnitus.
Service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 39 C.F.R. § 3.303(d).
The evidence presented in this case reveals that the
appellant was a combat engineer for seven years in service
and was routinely exposed to hazardous noise. He had
complaints of tinnitus at a VA medical examination eight
months after service. After longitudinal review of the
evidence, the Board concludes that it is at least evenly
balanced as to the origins of the appellant's tinnitus.
Therefore, applying the benefit of the doubt doctrine, as
required by statute when evidence is in equipoise, the Board
finds that a grant of service connection is warranted for
tinnitus.
ORDER
Service connection is denied for defective hearing.
Service connection is granted for tinnitus.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
M. SABULSKY HARRY M. McALLISTER, M.D.
J. U. JOHNSON
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.